Illegal Phones Expose Prisoners' Squalor

Buried on page 16 of the NYTimes  (1/17), is a story about the horrific conditions in Mississippi prisons as reported and documented by inmates on contraband cellphones. Just as outrageous is the response of that state's supreme court, which the article reports upheld a 12 year sentence imposed on Willie Nash, who was in jail on a misdemeanor charge and innocently asked a jailer if he could recharge his phone. The cowards on that court "noted that [the sentence] was 'obviously harsh' and 'seems to demonstrate a failure of our criminal justice system' " but inexplicably did nothing to alleviate the inhumane sentence nor to address the abhorrent injustice except to pay lip service. Another depressing example of justices who fail to do justice.

The Senate Must Hear Witnesses

Prof. Krotoszynski Jr.'s argument (1//16/20, A23), that the Senate should reject President Trump's claim of executive privilege to prevent the testimony of his senior aides, is erudite, well-reasoned and substantially correct. However, I disagree that the Senate is free to fashion its own take on bedrock legal principles to guide an impeachment trial.

Had the House of Representatives obtained a final court ruling, that the president's assertion of privilege was bogus, I believe the Senate should be bound to apply that finding. In the absence of such a ruling, the Senate should be guided by the precedent established by the courts in other cases defining the limits of executive privilege. To disregard those precedents, and make its own law in this impeachment, the Senate would be announcing that the law is different for this president than it is for others, a dangerous acknowledgement that Mr. Trump is above the law.

The "Imminent" Threat of Soleimani

Put aside that President Trump's latest justification, for the killing of Quds Force leader Soleimani, differs from past explanations, has been contradicted by other officials, is unsupported by any evidence, was not included in the briefing given Congress and defies the plain meaning of imminent. If an attack on four American embassies was imminent presumably  it was already planned and merely awaiting a go-ahead, a signal just as easily given by Soleimani's successor who would have increased incentive to retaliate. Taking out Soleimani would, therefor, prevent nothing.

Further, by publicly outlining those plans, Mr. Trump has increased the prospect that terrorist cells will feel called upon to carryout what they likely will regard as Soleimani's dying wish. Thus, Mr. Trump's inconsistent and evolving string of excuses has increased, not diminished the risk of harm to Americans.

Abolishment of Cash Bail

Law enforcement officials sound alarms on eve of cash bail abolishment (1/1/20, A-20).

While history demonstrates that most defendants released without bail will return to court and will not engage in violence while at liberty, it was a mistake to not legislatively empower judges to consider the risk of harm to the public posed by some released arrestees. While that determination may be subjective, it can be appropriately informed and delimited by objective tests including the nature of the crime, the strength of the evidence, the existence of documented threats and the defendant's mental state and criminal history. 

While the new law, which takes effect today, made some reasonable accommodations to public safety, by excluding serious crimes and those involving violence, that is merely a temporary solution. A permanent fix should provide for a rational way to assess and prevent the risk of  release to public safety and insure speedier trials so that accused persons do not languish in jail for lack of financial means.

Bloomberg Link to Prison Labor

News accounts of the use of prisoners to make campaign calls, and the Bloomberg campaign's negative reaction (12//25, A-16), have done a disservice to updated attitudes about penal reform and rehabilitation. Instead of treating the news that incarcerated persons have been given an opportunity to gain new skills, earn money and participate in the democratic process, an accomplishment which rightfully should be celebrated, the disclosure has been treated as a minor scandal.

Bloomberg's response, to fire the contractors and promise stricter vetting to prevent recurrence, only compounds the distortion of what should have been an uplifting story

Trial of Impeachment

To resolve the standoff in the senate, on the appropriate process for the impeachment trial of President Trump, and particularly, whether both sides should be able to subpoena and examine witnesses with first hand knowledge of relevant events, I propose the following.

Democrats and Republicans should agree to make application to and be bound by the rulings of Chief Justice John Roberts. Presumably Justice Roberts, who has the trust of Republicans, will bring to bear his judicial insights on the need to hear from fact witnesses and the relevancy of offered testimony, a role traditionally delegated to judges. Hopefully, Justice Roberts, in making his rulings, will be guided by his legal expertise and concern for the historical legacy of the court he leads.

Supreme Court to Rule on Release of Trump's Financial Records

The Supreme Court's announcement, that it has accepted for appeal three cases in which the lower courts ruled that Donald Trump's accountants and bankers must produce certain of his tax returns and other financial records, is an ominous development. If, as many legal analysts had predicted, the right of Congress (and a local prosecutor) to obtain these records was a "slam dunk", the Supreme Court simply would have denied certiorari effectively sanctioning the lower courts' rulings.

Given the makeup of the Court, I suspect there is an appetite to step in to protect Mr. Trump. What is likely to happen is a 5 to 4 split with the outcome dependent upon whether Chief Justice Roberts' concern for the verdict of history and the public's perception of the Court as an impartial arbiter outweighs his demonstrated tendency to uphold conservative, Republican interests.

The members of the Court who will favor Mr. Trump will first proclaim that they are not imposing a broad prohibition shielding a president from all investigation. Then, they will attempt to justify their position by arguing that the subpoenas were politically motivated and part of an unjustified campaign of harassment; that Congress has not adequately identified a legitimate legislative purpose; that the articles of impeachment do not broaden Congress' investigative authority because they do not relate to the president's alleged financial misconduct and that a local prosecutor may not investigate a sitting president.

All of these arguments are specious and would not pass  the red-face test, let alone unbiased constitutional analysis. One can only hope that the better angels of CJ Roberts' judicial persona overcome his conservative mindset and save the Constitution.